63 How. Pr. 434 | N.Y. Sup. Ct. | 1882
This unusual proceeding is based upon section 14 of the Code of Civil Procedure, which provides that a court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in a court, may be defeated, impaired, impeded or prejudiced in either of certain enumerated cases, and among them that of a sheriff for misbehavior in his office or trust, willful neglect or violation of duty therein, or disobedience to a lawful mandate of the court.
Thus the sheriff found himself in the possession of two mandates of the court, apparently, but not really, in conflict.
By the mandate in replevin he was commanded, after the expiration of three days and the failure of the defendants therein to except to the sureties or reclaim the chattels, having been indemnified against the claim of title made by the Second National Bank, to deliver the malt to the First National Bank (Code of C. P., secs. 1690 to 1712).
By the mandate in the form of an execution he was commanded, having been indemnified by the Second National Bank against any claim of title or right to possession by a third party, to detain the malt as belonging to the judgment debtor and sell it in satisfaction of plaintiff’s judgment (Code, sec. 1419).
■ For any failure to act strictly according to law he and his official -sureties are liable in damages to the party injured, and in addition to that liability, it is now sought to punish him for contempt because it is claimed that he did not correctly decide certain grave questions of law that counsel have argued so elaborately and in relation to which they differ so widely.
This means a completed delivery, so that nothing further remains to be done. What transpired at the interview between the sheriff and the president of the First National Bank, on the thirteenth, did not constitute such a delivery, as the malt was in bulk, and the 10,000 bushels was not separated from the mass. It was a formal, but not that manual or physical delivery contemplated by the statute. Hence the notice of claim served on the sixteenth by the Second National Bank,, by virtue of its execution and levy, was in time.
II. The plaintiffs claim, however, although presented before the actual delivery of the malt to the First National Bank, was not in existence at the time when the malt was replevied. This claim is not by virtue, simply, of the debt of the Second National Bank against John Dunn, which constituted no lien and gave no right of possession, but by virtue of the judgment rendered on that debt, the execution issued on the judgment and the levy made under the execution, which ordinarily would constitute a lien and give- a right to possession. The claim must exist at the time the property is replevied (Sec. 1709). The property is replevied by the sheriff’s taking it into his possession (Sec. 1700). But when the sheriff took this malt into his possession the Second National Bank had no lien, and nothing under which it could claim a lien. It had no judgment. It had not commenced an action. Even the note on which it afterwards recovered judgment was not in existence.
III. It was the duty of the sheriff, under the mandate in replevin, to deliver the malt to the First National Bank after the expiration of the time provided by law. Was that duty liable to be suspended by the intervention of the right of a third party, even if its claim or lien was not in existence at
All claims to the right of present or temporary possession as against Dunn, in existence at the date of the replevy, are concluded by the replevin proceedings until judgment in the action awarding final possession. But as the claim of the plaintiff did not exist as a lien, at that time, is it concluded by those proceedings during the pendency of the replevin suit 2
Mr. Wells, in his recent treatise on the Law of Replevin, lays down the rule that when an officer has taken property by virtue of a writ of replevin, for the purpose of delivering it in obedience to the mandate, he is regarded as holding it in the custody of the law; that while acting in obedience to that command the law will not permit any other party to interfere and prevent him from doing what the writ commands him to do; that the proceeding is so far in rem, that the goods cannot be seized upon any process until the court shall have taken action; that if a party finds his goods in the hands of an officer upon a valid writ of replevin, and that they have been taken from the possession of the defendant named in the writ, his remedy is by an application to the court to be permitted to come in and set up his claim to them, and not by an independent proceeding (Wells on Replevin, secs. 256, 257). The rule is otherwise where the sheriff has taken the property from the possession of a party not named in the writ, as in such case he has not acted according to, but rather
In Hogan agt. Lucas (10 Peters [U. S.], 400) it was held that when the property taken in replevin is placed in the possession of the claimant his custody is the custody of the sheriff, and the property is not withdrawn from the custody of the law but is as far from the reach of other process as it would have been in the hands of the officer. That although the property had been delivered to the claimant it was constructively in the custody of the state court so as to prevent a marshal of the United States from levying upon it.
In Acker agt. White (25 Wend., 614) it was held that property seized under an execution and then delivered upon a writ of replevin to a third person cannot afterward be levied upon under another execution against the defendant in the first execution, although the property be permitted to continue in his possession; that the replevin bond was substituted for the goods and was regarded as an equivalent security to the extent of the value of the goods; that the goods, although in the actual custody of the plaintiff in replevin, were constructively in the custody of the late sheriff who had taken them on the replevin process and were not liable to seizure upon an execution in the hands of the acting sheriff. This case was carefully analyzed and commented on by the court of appeals in Burkle agt. Luce (1 Com., 163, 168).
In Manning agt. Keenan (73 N. Y., 45), where coroners had seized goods under replevin process, and on being served with notice of claim by a third party had been indemnified by the plaintiff in replevin and had delivered the goods to him, it was held that they were bound to make such delivery but
My conclusion is that it was the duty of the sheriff to separate and deliver to the First National Bank the 10,000 bushels of malt called for by its requisition; that the Second National Bank has no lien on that malt as it is in the custody of the law, and hence not liable to seizure under execution; that pending the action in replevin the undertaking given in that suit for the return of the malt or payment of its value, together with the right to a judgment for its return or value in ease of a successful defense, takes the place of the malt itself so far as either may become the subject of attack by the judgment creditors of Mr. Dunn.
IY. It is urged that the receipt under which the First National Bank is said to claim the malt, is not a warehouse receipt, but a pledge or an unrecorded chattel mortgage or bill of sale, and hence ineffectual as against judgment creditors. However that may be, it can only be determined when the replevin action is tried. Whether the sheriff was or was not informed of the facts showing title or the want of title in the First National Bank is wholly immaterial. The requisition was both the foundation and boundary of his duty and power. If valid on its face he was bound to execute it, and he had no right to look beyond it or behind it. It was the command of the court, and whether right or wrong he was required to obey it, and protected if he obeyed it.
Y. Whether the foregoing conclusions as to the rights of the various parties are correct or not, it is clear that the
Misbehavior in office, willful neglect of duty and disobedience to a lawful mandate of the court, all imply bad faith, and not a simple mistake or error of judgment. If a party ■to an action is injured by a mistake of the sheriff in the discharge of an official duty, he can hold him and his sureties liable in damages, but cannot proceed against him as for a contempt. An inexperienced officer, before he has been in office a month, should not be fined or imprisoned because he did not correctly decide difficult and important questions of law, in relation to which learned counsel differ, and over which the court may well hesitate.
The motion is denied, with ten dollars costs, and the stay of proceedings is vacated.